Johnson v. Johnson

• Decision Date: 14 March 1958
• Docket Number: No. 8648,8648
• Citation: 323 P.2d 16,7 Utah 2d 263
• Parties: d 263 Marilyn Barnett JOHNSON, Plaintiff and Appellant, v. Deral John JOHNSON, Defendant and Respondent.
• Court: Utah Supreme Court

Page 16

323 P.2d 16

7 Utah 2d 263

Marilyn Barnett JOHNSON, Plaintiff and Appellant, v. Deral John JOHNSON, Defendant and Respondent.

No. 8648.

Supreme Court of Utah.

March 14, 1958.

Lionel M. Farr, Salt Lake City, for appellant.

Richard C. Dibblee, Salt Lake City, for respondent.

CROCKETT, Justice.

This is an appeal by Marilyn Barnett Johnson from an order modifying a divorce decree relieving her of custody of two minor children of the parties, Sheryl Ann, 14, and Dawnell, 8, and awarding such custody to the defendant, Deral John Johnson, subject to rights of visitation.

The parties were married in 1941 and lived in Midvale, Utah, where the children were born and, except for very brief periods, have spent their lives thus far. At the time of the divorce in February, 1952, the plaintiff was awarded custody of the children. The defendant has remarried and continues to live in Midvale; the plaintiff remains single and lives in an apartment in Salt Lake City.

For the first two months after the divorce plaintiff and the children lived with the defendant's mother. For the next year and a half the girls were shifted back and forth between the parties as agreed upon by them, but because the older girl was in school, she lived most of the time with her father. In the Fall of 1953, both children went to live with him, it having been decided by all concerned that this would be best for the children for various reasons including the fact that it was the only home the children knew, and their attachments through church, school and friends made them desire to live there.

As time went on plaintiff found it increasingly hard to visit and spend time with the children. Difficulties in transportation, conflicting time schedules, and the fact that she worked, all combined to limit her opportunities to be with them, and she gradually sensed that she was becoming less and less a part of their lives. Her apprehensions of detachment were not alleviated by the fact that the second Mrs. Johnson, Linda, appears to have genuine love and affection for the girls and they for her. The plaintiff complains that Linda is taking her rightful place as the natural mother in the children's affections. That this might be distressing to the plaintiff is understandable and certainly engenders sympathy for her position, but it is obviously a great boon to the children living in their father's home. While the parents are entitled to some consideration, the paramount objective in such proceeding is not therapy for them, nor vindication of asserted parental rights, but is the walfare of the children.

Circumstances such as existed here, where divorced parents love their children and each maintains an active interest in them and desires their custody, have inherent conflicts which make it exceedingly difficult for the parties to exercise the good judgment and forbearance of personal desires necessary to a balanced and harmonious relationship so the children may enjoy the love and companionship of both parents. But no one will deny that they should do so to the greatest possible degree consistent with the limitations of such a situation. The record here indicates that these parents were not unaware of this desideratum and that there has been a reasonably tolerant and cooperative attitude on both sides. However, the tensions of the situation described, together with some minor unfortunate incidents, which need not be detailed, finally formed a syndrome of pressures which impelled the plaintiff to demand that the children be returned to her custody, which resulted in this proceeding in 1957. The trial court found that both parents were fit to have custody of the children, but in view of the facts that they had been living in their father's home substantially all during the five years since the divorce, where they were well adjusted and happy, and both desired to remain there, decided that it was to their best interest and welfare to remain with their father, subject to plaintiff's right to visitation, and made the order accordingly.

The plaintiff makes three points in support of her charge that the trial court erred in changing the custody of the children to their father. The first of these relates to procedure at the hearing: that it was error for the judge to confer privately with the children, and particularly with the youngest girl, Dawnell, and to permit her to express a preference as to whom she wanted to live with, because she was under 10 years old. This, the plaintiff avers, is inconsistent with Sec. 30-3-5, U.C.A.1953, which provides in reference to children under a divorce decree:

'* * * If any of the children have attained the age of ten years and are of sound mind, such children shall have the privilege of selecting the parent to which they will attach themselves.'

In Austad v. Austad ¹ we had occasion to consider a similar assignment of error. Therein, in regard to interviewing the children, we said, 'The desirable way is for the parties to stipulate as to how the court may do it and such is the usual procedure. If counsel desire to be present, the privilege should be accorded unless some compelling reason to the contrary exists.' That procedure was followed here. Judge Larson talked to the attorneys and explained that he thought he could better appraise the situation by talking to the children separately, without counsel and without recording what was said, and concluded:

'* * * if counsel have any objections to that procedure, you may voice it.'

Mr. Lionel Farr (for plaintiff):

'Plaintiff has no objection to that procedure.'

The judge stated that the results of the conference would be indicated in the record, which was done; the essence thereof was that the girls desired to continue to live with their father at their home in Midvale. There is nothing whatsoever to support the idea that the judge thought the preference stated by the child was binding upon him. The record rather reflects that he correctly regarded the expression of preference as mere advice as to the desires of the child and as only one of the factors to be considered in determining what course would best serve her welfare. There was nothing inimical to the rights of the plaintiff in the procedure followed.

Plaintiff also relies upon the provisions of Section 30-3-10, U.S.A.1953, which provides that:

'In any case of separation of husband and wife having minor children, the mother shall be entitled to the * * * custody of all such children; (exception some as 30-3-5 hereinabove quoted that children above 10 may select) [unless] * * * it shall be made to appear * * * that the mother is an immoral, incompetent or otherwise improper person, * * *'

and urges that inasmuch as there was no finding that she was an unfit parent she is absolutely entitled to the custody of Dawnell.

The question thus posed was treated in extenso in Sampsell v. Holt, ² wherein Justice Wolfe pointed out the distinction between 30-3-10 which by its language concerns cases of 'separation' whereas Section 30-3-5 is expressly applicable to 'divorce.' It begins, 'When a decree of divorce is made the court may make such orders in relation to the children, * * * as may be equitable. * * *'

The law with respect to this issue is well summarized by Chief Justice McDonough in the recent case of Steiger v. Steiger: ³

'This court has stated that a divorced mother has no absolute right to the custody of minor children * * * but the policy of our decisions has been to give weight to the view that all things being equal, preference should be given to the mother in awarding custody of a child of tender years, * * * and this view is based upon the oft-stated purpose of the award of custody to provide for the child's best interests and welfare. * * *' (Citing authorities.)

The instant case is a good example of the undesirable and impractical results that would emanate from adopting the view urged by plaintiff that the court must invariably, in all circumstances, award the custody of children under 10 to the mother unless she is found to be an immoral or incompetent person; it likewise exemplifies the wisdom of the prior adjudications of this court that questions of custody are always equitable and that the controlling consideration is the welfare of the children involved. ⁴

The plaintiff can advance no basis upon which to attack the award of custody to the older girl, Sheryl Ann, to her father. To compel the little sister to leave the home under duress would deprive both of many values important in their lives, including the companionship of each other. It is to be kept in mind that the choice the girls made does not indicate loss of love or regard for the plaintiff, nor can it be taken in any respect as a rejection of her as their mother. Their choice, and, more important, the decision of the court, were based upon considerations of their total environment, including the only home they have known; and their friendships and attachments through school, church and social contacts. Parental love must find expression, to some extent at least, in sacrifice for the happiness and welfare of children, rather than in merely insisting upon privileges of parenthood.

The trial court discreetly discussed these matters with the parties and admonished that they give due consideration to them and re-evaluate their relationships to the end that the best and happiest situation for the children and themselves be worked out and maintained. Due to the equitable nature of such proceedings, the proper adjudication of which is highly dependent upon personal equations which the trial court is in an advantaged position to appraise, he is allowed considerable latitude of discretion and his orders will not be disturbed unless it appears that there has been a plain abuse thereof. We cannot say that he did so here, but rather are impressed with the wisdom in which he handled a difficult situation.

The other point urged...